Mass Tort Litigation Blog

Judge Requests Consolidation of Birth Control Suits

From the Tort Prof blog: http://lawprofessors.typepad.com/tortsprof/2009/11/judge-requests-mass-tort-status-for-new-jersey-birth-control-suits-.html

ADL

Passing of David I. Shapiro

Litigator David I. Shapiro, founding partner of the firm Dickstein Shapiro, has died.  In a career that spanned many areas of litigation, Mr. Shapiro also was active in several prominent mass tort litigations, and came to focus on mediation as a case management method.  Here's an excerpt from the Wall Street Journal's obituary:

Mr. Shapiro branched out into class-action suits in the late 1960s. He handled the states' cases in a complex federal price-fixing lawsuit against manufacturers of the antibiotic tetracycline, winning a $100 million verdict for the states.

Later, Mr. Shapiro took on cases related to breast implants, asbestos and the Exxon Valdez oil spill. In 1984, he was assigned as a special master to handle a $180 million settlement resulting from the Agent Orange case, then among the largest class-actions suits to date.

But Mr. Shapiro came to feel that much of class-action litigation was driven by greed, and that cases could be better settled by other means. He developed an expertise in negotiations, and was chairman of the American Bar Association's National Institute on New Techniques for Resolving Complex Legislation.

"It's possible to get justice and recompense for consumers without the greed of the few that plagues the U.S. system," he told the Telegraph of London in 2007.

He taught mediation at the London School of Economics, and created a mediation practice at SJ Berwin. 

BGS

Fall 2009 Newsletter for ABA Mass Torts Litigation Committee

The newsletter is now available and includes articles on Lone Pine orders, public nuisance law, federal preemption, sophisticated user and sophisticated intermediary defenses, the Fake Bad Scale Test, and document review.

BGS

Zicam MDL

The Zicam MDL has been centralized in the District of Arizona before the Hon. Frederick J. Martone.  The order can be found here.  Hat tip: Torts Prof Blog. 

ADL

Chinese Drywall Litigation Update

The Sarasota Herald-Tribune reported yesterday that Florida's Senate Community Affairs Committee held a hearing to discuss both legislative and state agency action to prevent builders from using tainted Chinese drywall.  The article reports that Florida is considering the following legislative action:

• Providing relief on mortgage payment for homeowners trying to rehabilitate their homes;
• Developing a standard for remediating homes and certifying them as being free from the drywall problems
• Allowing homeowners to receive a tax break to offset their rehabilitation costs; and
• Providing help to homeowners trying to deal with insurance companies over the cost of the home rehabilitation.

The Consumer Product Safety Commission has received 1,051 reports from residents in 27 states who believe that Chinese drywall impacted their health or corroded metal components in their homes.  Meanwhile, Cain Burdeau, of the Associated Press, indicated that the Chinese drywall makers may ignore the multi-district litigation in New Orleans, which includes roughly 300 lawsuits.  Judge Eldon Fallon, who presided over the Vioxx litigation, has already found one Chinese company in contempt of court for ignoring the lawsuits.

UPDATE: New York Times story can be found here.

ECB

Air Disaster Case Dismissed on Forum Non Grounds

BNA Class Action Reporter notes that a class action brought against Airbus on behalf of the 77 persons that perished when a plane went down near Brazil in July 1007 was dismissed on Forum Non Conveniens grounds.  The case will have to be litigated in Brazil. See Tazoe v. TAM Linhas Aereas, S.D. Fla., No. 07-21941-CIV, 8/21/09. 

Readers interested in the topic of class actions in Latin America will want to read my colleague Angel Oquendo's article:  Angel Oquendo, Upping the Ante: Collective Litigation in Latin America, 47 Colum. J. Transnat’l L. 248 (2009).

ADL

The Case Against Products Liability

Law and Economics scholars Steven Shavell and A. Mitchell Polinsky have posted "The Uneasy Case for Products Liability" on SSRN.  Here is the abstract:

We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety — and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so.

A cost benefit analysis that takes account of the costs of litigation as a social cost is useful.  I guess we need to compare the social costs of litigation with the social costs of administrative regulation and "market" regulation in order to determine which is the most efficient mode of regulation.  Looks like an interesting piece.

ADL

Satish K. Jain on the Efficiency of the Negligence Rule

Satish K. Jain (Jawaharlal Nehru University) has posted to SSRN his article, On the Efficiency of the Negligence Rule.  Here's the abstract:

In the law and economics literature there are three different versions of negligence rule which have been discussed. These three versions are: (i) Injurer is liable for the entire loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (ii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (iii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if there exists a precaution which could have been taken but was not, and which would have brought about reduction in expected loss of a magnitude greater than the cost of precaution; otherwise nonnegligent. In the literature it is taken for granted that all three versions of negligence rule are efficient. A careful analysis, however, shows that version (iii) is not efficient. This version, in fact, is not efficient even for the unilateral case. Efficiency of version (i) was established by Brown. Efficiency of version (ii) for the unilateral case was shown by Kahan; efficiency for the bilateral case is established in this paper.

BGS

Joseph Raz on Responsibility & the Negligence Standard

 Joseph Raz (Columbia & Oxford) has posted to SSRN his article, Responsibility & the Negligence Standard.  Here's the abstract:

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

BGS

Jackpot Justice: Verdict Variability and the Mass Tort Class Action

I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007).  Notwithstanding the 2007 formal publication date, the article was published this year.  Here's the abstract:

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.

BGS

Sixth Circuit Fen-Phen Decision on Statute of Repose

Drug & Device Law praises statutes of repose and discusses a recent Sixth Circuit Fen-Phen decision.

BGS

Pro-Defense Daubert Ruling in Bausch & Lomb MoistureLoc MDL

Pertaining to the more speculative cases alleging non-fusarium infections.  Drug & Device Law analyzes the opinion.

BGS 

Richard Epstein on Consumer Regulation

In his July 14 Forbes column, Vanguard or Rearguard?, Richard Epstein (Chicago & NYU) recounts the history of the FDA, as well as other regulatory frameworks, and concludes that "[r]egulatory failure is, on average, a far greater risk than market failure."

BGS

Viagra MDL Judge Rejects Plaintiff Expert Testimony Under Daubert

A detailed analysis (with rejoicing) from Drug and Device Law.  The opinion details deficiencies in the plaintiff expert's previously peer-reviewed and published study.  

For a past article of mine that set forth problems in the main study underlying the opinions of plaintiffs' experts in the phenylpropanolamine (PPA) litigation, see here. 

BGS

Anita Bernstein on Asbestos Achievements

Anita Bernstein (Brooklyn) has posted to SSRN her article, Asbestos Achievements.  Here's the abstract:

This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.

BGS

First Circuit Decision on Federal Claims Act

FDA Law Blog analyzes the decision in United States ex rel Duxbury v. Ortho Biotech Products.

BGS

Second Trial-Court Denial of NJ Vioxx Class

Analysis of Judge Higbee's opinion at Drug & Device Law.  Here's the opinion.

BGS

Kyle Logue on Coordinating Sanctions in Torts

Kyle D. Logue (Michigan) has posted to SSRN his article, Coordinating Sanctions in Torts.  Here's the abstract:

This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in such cases be displaced or preempted? The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not. 

For one example, if the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play. 

This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.

BGS

Jason C. Miller on Michigan's Regulatory Compliance Defense

Jason C. Miller of University of Michigan has posted to SSRN his Note, When and How to Defer to the FDA: Learning from Michigan's Regulatory Compliance Defense, 15 Mich. Telecomm. & Tech. L. Rev. 565 (2009).  Here's the abstract:

Should FDA approval of a drug affect products liability litigation? This remains one of the most debated questions in the law. Although the Supreme Court recently held that state tort law is not forced to defer to the FDA's finding that a drug is safe through preemption, states remain free to defer to the FDA by providing a regulatory compliance defense in state substantive law. Michigan made exactly such a choice in enacting the only complete defense for FDA-approved drugs. Compliance with FDA regulations conclusively establishes a lack of products liability under Michigan law. With preemption seemingly off the table after Wyeth v. Levine, advocates of greater deference to the FDA may use Michigan as a model for legislation in other states. Much can be learned from examining Michigan's law. 

Michigan's regulatory compliance defense properly recognizes that an FDA-approved drug carrying an FDA-approved label should not be considered defective. However, the statute's absolute immunity provides no compensation for injured parties in any circumstance, including situations where the FDA process has failed to protect consumers. This Note examines the question of FDA approval in state tort actions, discusses Michigan's answer to that question, and offers a proposal that would block most private actions against FDA-approved drugs (as Michigan has done), but would allow a state attorney general to bring suits in certain circumstances. The state attorney general model detailed in this Note stakes out a middle ground in the debate over the significance of FDA approval. The proposal recognizes the primacy of the FDA, but also recognizes the need for a back-up that can provide deterrence and compensation in the few cases that slip through the FDA's regulatory cracks.

BGS   

First Fosamax Trial Against Merck Begins Today

Am Law Daily's Priti Patnaik writes about the Boles case:

Starting Tuesday, pharma giant Merck & Co., Inc. faces the first trial over its osteoporosis drug Fosamax. More than 900 such lawsuits have been filed by more than 1,200 plaintiffs in state and federal courts. The suits claim that doctors were not warned that the drug may hamper blood flow to the jaw, causing jawbone-tissue death--osteonecrosis of the jaw, or ONJ. In some cases, ONJ leads to partial removal of the jaw.

Plaintiff Shirley Boles, 71, is represented by partner Timothy O'Brien and associates Meghan Tans and Ned McWilliams of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor. Michelle Parfitt and James Green at Ashcraft & Gerel are also working on the case.

Merck's trial team includes Paul Strain of Venable in Baltimore and Christy Jones of Butler, Snow, O'Mara, Steves & Cannada. Both represented Merck in the marathon Vioxx litigation. The company declined to name the other attorneys working on the case, saying that the information was part of its litigation strategy.

Interestingly, Judge Keenan has ruled that no punitive damages may be sought.

BGS